Opinion issued February 5, 2026
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-24-00042-CR ——————————— GILBERTO CASTILLO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 22-CR-3892
MEMORANDUM OPINION
Appellant Gilberto Castillo appeals from his conviction for the third-degree
felony of assault with bodily injury with a prior conviction. In one issue, Castillo
argues he suffered egregious harm because the jury charge referred to the use of self-defense as defending against deadly force and erroneously omitted information
about the burden of proof in a self-defense instruction.
We affirm the trial court’s judgment as modified.
Background1
Appellant Gilberto Castillo and Imelda Pena had a “long-term dating
relationship” that began in September 2019. The police had been called to Pena’s
home on prior occasions to assist with a “verbal disturbance” between Castillo and
Pena. According to Pena, Castillo, who lived with her and her children, assaulted
her on “various occasions.” 2
On the night of October 8, 2022, Pena, her children, and Castillo were
planning to watch a movie at Pena’s trailer after dinner. Castillo did not stay to
watch the movie. He left Pena’s trailer to go drinking with a cousin instead.
According to Pena, when Castillo returned to her trailer in the early morning hours
of October 9, Castillo had scrapes on his back, arm, hand, and face. Castillo left the
trailer, but he returned the same day before daybreak. According to Pena, when
Castillo returned to the trailer the second time, he was mad and still intoxicated.
1 Eight witnesses testified during the guilt-innocence phase of trial. We only address the testimony pertinent to Castillo’s self-defense claim. 2 There was conflicting testimony as to whether Castillo lived fulltime with Pena when the incident occurred. Castillo testified that he was already married when he met Pena and when they began to date, he started “leading two lives.”
2 Castillo kicked the trailer door open and began hitting Pena in the face with his
hands.
Pena’s oldest child, A.P., who referred to Castillo as her stepfather, was in
the trailer when the incident occurred. She testified that when Castillo returned to
the trailer the first time the morning of October 9, he looked like he had been in a
fight. He had blood on his face. Castillo told A.P. and her siblings that he had
fought a bear. After everyone went to sleep, Castillo left the trailer again. A.P.
woke up later that same morning when she heard Castillo screaming at Pena.
Castillo was pulling Pena’s hair, hitting her, and cussing at her in the living room.
A.P. threw a picture frame at Castillo to get him to stop. Castillo was trying to drag
Pena outside the trailer by her hair. Pena was crying. Castillo pulled Pena through
the front door of the trailer and down the steps to his car. According to A.P.,
Castillo threw Pena into the driver’s seat of his car. Pena crawled into the back seat
of the car and opened the door to get out. As she tried to get out of the car, Castillo
started to drive off. A.P. testified that Pena got injured because the car door was
open when Castillo started driving off.
On October 9, 2022, at approximately 6 a.m., the Dickinson Police
Department dispatched officers to a domestic violence call at Pena’s trailer.
According to the dispatcher, a fourteen-year-old female caller told the dispatcher
that her mother, Pena, was being assaulted by her stepfather, Castillo. By the time
3 police arrived at the scene, Castillo was gone. One of the responding officers
observed Pena’s injuries. Pena’s injuries included road rash to her elbows and
ankle, redness around her right eye, and a possible blow to the head or pulled hair.
The officer later testified that Castillo struck Pena in the face with his hands, pulled
her hair, and pushed her to the ground inside her home. Pena also fell while
holding onto an open car door as Castillo tried to drive away, but police could not
determine whether Pena’s resulting road rash was the result of accidental or
intentional conduct by Castillo.
Later on October 9, Castillo went to the police department to give a
statement. He spoke to the same officer who spoke to Pena earlier in the day.
Castillo told him he had been assaulted by Pena at approximately 3 a.m. that
morning. Although Castillo had injuries to his face and body, the officer did not
find Castillo credible. He testified he did not find it likely that a male would
sustain injuries of that kind when attacked by a female, and the time frame did not
match, given that the disturbance to which police were called was at 6 a.m. Castillo
was ultimately charged with “assault causing bodily injury with prior conviction”
and “failure to stop and give information.”
Castillo testified that the night before the assault, he went to Pena’s trailer to
watch a movie with her and her children. He left and when he returned, Pena began
to scratch him. According to Castillo, the trailer door was not locked and he did not
4 kick it open. He testified that some of his scratches were from an argument with
Pena when he left the trailer the first time. When he left the first time, he also fell
on the stairs to the trailer injuring his back.
Castillo testified that when he tried to leave the trailer the second time, he
and Pena began arguing and she was trying to push him and scratch him again.
Castillo tried to get out of the house and Pena ran to his car, telling him he was not
leaving and screaming at him. According to Castillo, he grabbed Pena by her arm
and got her out of his car so that he could leave. He denied that he dragged Castillo
out of the trailer by the hair or that he hit her with his hand. Castillo testified he
was “just trying to get away, not hurt her.”
The jury convicted Castillo, and the court imposed a sentence of seven
years’ imprisonment. This appeal ensued.
Jury Charge Error
Castillo argues the jury charge contains harmful error because the charge
referred to the use of self-defense as defending against deadly force and omitted
information about the burden of proof in a self-defense instruction.
Applicable Law
It is the trial court's responsibility to deliver to the jury a written charge
“distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. art
36.14; Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). The purpose
5 of the charge is “to inform the jury of the applicable law and guide them in its
application to the case.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007) (citation omitted). A proper jury charge consists of an abstract statement of
the law and the application paragraphs. Alcoser v. State, 596 S.W.3d 320, 332
(Tex. App.—Amarillo 2019) (“[A] jury charge should begin with an abstract
paragraph defining the elements of an offense, or defining significant words or
phrases, followed by an application paragraph that applies that law to the facts of
the particular case.”), rev’d on other grounds, 663 S.W.3d 160 (Tex. Crim. App.
2022). The abstract paragraphs serve as a glossary to help the jury understand the
meaning of concepts and terms used in the application paragraphs of the charge. Id.
at 328. The application paragraphs apply the “pertinent penal law, abstract
definitions, and general legal principles to the particular facts and the indictment
allegations.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). The
charge’s application paragraph, not the abstract portion, authorizes a conviction.
Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).
Standard of Review
When reviewing a challenge to a jury charge, we engage in a two-step
analysis. We first consider whether error exists in the charge. Kirsch v. State, 357
S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred, we next determine
whether sufficient harm resulted from the error requiring reversal. Id.
6 The degree of harm necessary for reversal depends on whether the defendant
properly objected to the error. See id. (“The issue of error preservation is not
relevant until harm is assessed because the degree of harm required for reversal
depends on whether the error was preserved.”) (citing Middleton v. State, 125
S.W.3d 450, 453 (Tex. Crim. App. 2003)). If the defendant properly objected to
the charge, we consider whether “some” harm occurred from the charge error.
Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). When as here, the defendant
fails to object to the charge, we will reverse only if the error resulted in
“egregious” harm. Jordan, 593 S.W.3d at 346 (citing Almanza, 686 S.W.2d at
171). Egregious harm requires a showing that the defendant was “deprived of a fair
and impartial trial.” Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013).
“Egregious harm is a high and difficult standard to meet, and such a determination
must be borne out by the trial record.” Villarreal v. State, 453 S.W.3d 429, 433
(Tex. Crim. App. 2015) (internal quotations omitted). When assessing whether an
appellant suffered egregious harm based on charge error, courts consider (1) the
entire jury charge, (2) the state of the evidence, including the contested issues and
the weight of any probative evidence, (3) the arguments of counsel, and (4) any
other relevant information revealed by the trial record as a whole. Id. (citing
Almanza, 686 S.W.2d at 171). Errors that result in egregious harm are “those that
7 affect the very basis of the case, deprive the defendant of a valuable right, vitally
affect the defensive theory, or make a case for conviction clearly and significantly
more persuasive.” Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011);
see also Nava, 415 S.W.3d at 298 (stating egregious harm requires showing
defendant was “deprived of a fair and impartial trial”); TEX. CODE CRIM. PROC. art.
36.19 (stating trial court’s judgment should not be reversed unless record shows
jury charge error was calculated to injure defendant’s rights, or unless record
demonstrates defendant did not have fair and impartial trial).
Discussion
Castillo’s stated appellate issue does not correspond to the arguments he
makes in his appellate brief. In his stated issue, Castillo argues that he
suffered egregious harm from the jury charge because said charge did not include the correct claim necessary to argue a self-defense claim by using the language of deadly force. This resulted in the jury being confused as to whether they had the possibility of not convicting [him] based off whether [he] had a right to defend himself against nondeadly force against him.”
(Emphasis in original.) Castillo’s brief does not address this issue, however.
Rather, his brief focuses on his argument that the jury charge impermissibly shifted
the burden of proof on self-defense to Castillo. Because Castillo did not brief his
first issue as stated, the issue is waived. See TEX. R. APP. P. 38.1(i) (stating
appellate briefs “must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record”); see also Thomas 8 v. State, 312 S.W.3d 732, 738 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)
(“Appellant has cited no specific facts in support of his authority and no authority
for his argument and therefore has failed to adequately brief this point.”).
In his brief, Castillo argues there was charge error because the jury charge
instructions were “confusing in various respects and did not clearly state the law
regarding self-defense by stating that the defendant did not carry the burden of
proof to prove that []he acted in self-defense.” Citing to the Texas Pattern Jury
Charge section on criminal defenses, Castillo argues the jury should have been
instructed that the defendant is not required to prove self-defense but, rather, the
State is required to prove beyond a reasonable doubt that self-defense does not
apply to the defendant’s conduct.
He argues that had the language from the Pattern Jury Charge been included
in the charge, “it would have been clear that the State—not Appellant—bore the
burden of proof and what exactly was to be proven.”
To the extent Castillo argues that the trial court was required to use the
language in the Patter Jury Charge, we reject his argument. It is well-settled that
criminal jury charges and instructions need not include the same verbiage as in the
pattern jury charges. See Tuft v. State, No. 14-22-00066-CR, 2023 WL 5622868, at
*5 (Tex. App.—Houston [14th Dist.] Aug. 31, 2023, pet. ref’d) (mem. op., not
designated for publication) (holding failure to “include all the instructions
9 recommended by the Committee on Pattern Jury Charges does not automatically
compel the conclusion that the trial court erred”); Campbell v. State, No. 01-21-
00332-CR, 2022 WL 3648891, at *12 (Tex. App.—Houston [1st Dist.] Aug. 25,
2022, pet. ref’d) (mem. op., not designated for publication) (holding no error when
jury instructions “provide[d] substantively the same information as the burden-of-
proof language contained in the Texas Pattern Jury Charge instruction for self-
defense”).
And even assuming, without deciding, that the trial court erred by not
including the Pattern Jury Charge instruction Castillo requested, Castillo does not
prevail on this issue because he did not establish he suffered egregious harm as a
result of the complained-of charge error.
Egregious Harm Analysis
Assuming without deciding Castillo established charge error, we cannot
reverse unless the error resulted in egregious harm. We apply the Almanza factors
to determine whether Castillo sustained egregious harm as a result of the alleged
error. We review the whole record for actual, not just theoretical harm, to the
accused. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (citing
Arline v. State, 721 S.W.2d 348, 351–52 (Tex. Crim. App. 1986)).
10 Castillo does not address the Almanza factors in his brief.3
1. Jury Charge
The first Almanza factor requires that we review the trial court’s charge in its
entirety. See Villarreal, 453 S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171).
The abstract portion of the charge correctly defined the elements of the
offense of Assault Family/Household Member with Previous Conviction, and
instructed the jury that Castillo is presumed to be innocent unless each element of
the offense is proved beyond a reasonable doubt, that the State had the burden to
prove each element of the offense beyond a reasonable doubt, and if the State
failed to do so, the jury must acquit Castillo. And there was a lengthy instruction
section regarding self-defense. As noted, the jury charge was not deficient merely
because it failed to quote the Pattern Jury Charge with respect to the burden of
proof to prove self-defense. This factor weighs against a finding of egregious
harm.
3 Castillo acknowledges that to establish egregious harm, reviewing courts consider the Almanza factors. But rather than discussing any of the factors in his brief, he merely concludes in the “Conclusion” paragraph of his brief that in “this instance, Appellant suffered egregious harm because the jury charge failed to sufficiency explain to the jury the concept of self-defense and further failed to explain to the jury that it was the prosecution’s burden to prove that Appellant did not act in self- defense.” 11 2. State of the Evidence
The second Almanza factor requires us to consider the state of the evidence,
including the contested issues and weight of probative evidence. See Villarreal,
453 S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171). “[T]he mere existence of
conflicting testimony surrounding a contested issue does not necessarily trigger a
finding of egregious harm.” Villarreal, 453 S.W.3d at 436 (citing Olivas v. State,
202 S.W.3d 37, 148 (Tex. Crim. App. 2006)).
Although Castillo testified that Pena scratched him, pushed him, and yelled
at him, there is no evidence of Castillo’s state of mind at the time he allegedly
acted in self-defense—that is, that he had a subjective belief that the force he used
against Pena was “immediately necessary to protect himself against [Pena’s] use or
attempted use of unlawful force.” See Lozano v. State, 636 S.W.3d 25, 32 (Tex.
Crim. App. 2021) (citing TEX. PENAL CODE § 9.31(a)). In asserting self-defense,
“[a] defendant must subjectively believe that another person used or attempted to
use unlawful force . . . or deadly force . . . against the defendant and that the
defendant’s use of unlawful force or deadly force in response was immediately
necessary.” Id. at 32 (citing Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim.
App. 1980)). And the defendant’s subjective belief must be “reasonable”—that is,
it must be a belief held by an “ordinary and prudent man in the same circumstances
as the actor.” Id. (citing TEX. PENAL CODE § 1.01(a)(42)). “Evidence of a violent
12 act against the defendant does not raise an inference of self-defense if the record is
silent about the defendant’s subjective state of mind at the time of the [alleged self-
defensive violence].” Carriere v. State, No. 01-23-00071-CR, 2024 WL 1446931,
at *6 (Tex. App.—Houston [1st Dist.] Apr. 4, 2024, pet. ref’d) (mem. op., not
designation for publication) (citing Lozano, 636 S.W.3d at 34).
Significantly, Castillo never testified that he injured Pena while acting in
self-defense. On the contrary, he testified that he did not injure Pena. For example,
he testified that as he tried to leave the trailer the second time, he and Pena were
arguing, and she was trying to push him and scratch him. He testified that he tried
to leave the trailer, but Pena ran to his car, telling him he was not leaving and
screaming at him. According to Castillo, he grabbed Pena by the arm and got her
out of his car so he could leave. He denied dragging Pena out of the trailer by the
hair or hitting her with his hand. He testified that he was “just trying to get away,
not hurt her.”
Castillo’s testimony that he did not hurt Pena is inconsistent with a claim of
self-defense. “Self-defense is a confession-and-avoidance defense requiring the
defendant to admit to his otherwise illegal conduct. He cannot both invoke self-
defense and flatly deny the charged conduct.” Jordan, 593 S.W.3d at 343 (citing
Juarez v. State, 308 S.W.3d 398, 404, 406 (Tex. Crim. App. 2010)). See also
Rodriguez v. State, 629 S.W.3d 229, 231 (Tex. Crim. App. 2021) (“Confession and
13 avoidance is a judicially imposed requirement that requires defendants who assert a
justification defense to admit, or at a minimum to not deny, the charged conduct.”).
We thus conclude that the second Almanza factor weighs against a finding
that Castillo suffered egregious harm. See Lozano, 636 S.W.3d at 34 (analyzing
second Almanza factor and concluding that because there was no evidence of
defendant’s subjective state of mind at time force was used, there was no egregious
harm resulting from complained-of charge error).
3. Arguments of Counsel
The third Almanza factor requires us to consider the arguments of counsel.
See Villarreal, 453 S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171). Neither
party addressed self-defense in its opening argument. During closing arguments,
the State argued that “self-defense [was] not at play here. [Castillo] didn’t admit
that he hurt [Pena] at all. And even if you think that there was a [self-defense]
situation, [Pena’s] action towards [Castillo] would have had to be unlawful. That’s
not what the testimony was.” Castillo’s counsel did not argue self-defense in his
closing argument.
We conclude this factor weighs against finding that Castillo suffered
egregious harm. See Arevalo v. State, 675 S.W.3d 833, 855 (Tex. App.—Eastland
2023, no pet.) (stating factor requires reviewing court to consider whether
14 statements made by State, defense counsel, or trial court “exacerbated or
ameliorated” complained-of charge error).
4. Other Relevant Evidence
The fourth Almanza factor requires us to consider any other relevant
information revealed by the record of the trial as a whole. See Villarreal, 453
S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171); Gelinas v. State, 398 S.W.3d
703, 707 (Tex. Crim. App. 2013) (describing fourth Almanza factor as “broad
‘catch-all’ category”).4 During voir dire, the State briefly discussed self-defense,
stating
[A] person is justified in using force against another when and to the degree that he or she reasonably believes the force is immediately necessary to protect himself or herself against the other’s use or attempted use of unlawful force.
The defense stated said only with respect to self-defense during voir dire that
“when they are talking about self-defense, that’s use of force; but it’s lawful
because it’s justified by the circumstance.”
The record further reflects that the jury did not inquire or submit notes or
other form of communication to the trial court regarding the instructions on self-
defense. See Arevalo, 675 S.W.3d at 856 (stating “it is unlikely that the jury was
4 For example, in our analysis of the fourth factor, we may consider whether the jury rejected one of multiple counts or requested clarification during deliberations. See Smith v. State, 515 S.W.3d 423, 431 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). 15 influenced or confused by the trial court’s instructions” when jury did not inquire
about complained-of definition). Even if the State’s self-defense comments during
voir dire may have exacerbated the harmfulness of any charge error, the jury’s lack
of questions about the charge—together with the evidence supporting Castillo’s
conviction and the lack of self-defense discussion by Castillo’s counsel in opening
statements and closing arguments—indicate that the jury likely was not confused
by or influenced by the erroneous charge.
Based on this record and considering all four Almanza factors, we conclude
the record as a whole does not reflect that any error affected “the very basis of the
case, deprive[d] [Castillo] of a valuable right, vitally affect[ed] the defensive
theory, or ma[d]e a case for conviction clearly and significantly more persuasive.”
Taylor, 332 S.W.3d at 490; see also Nava, 415 S.W.3d at 298 (stating egregious
harm requires showing defendant was “deprived of a fair and impartial trial”). We
thus conclude Castillo did not suffer egregious harm resulting from any alleged
jury charge error, and any harm was likely theoretical. See Villarreal, 453 S.W.3d
at 433; see generally Alcoser v. State, 663 S.W.3d 160, 171 (Tex. Crim. App.
2022) (stating Almanza forbids “the windfall of a new trial based on only
theoretical harm”).
We overrule Castillo’s sole issue.
16 Modification of the Judgment
Although neither party has requested that we do so, we sua sponte modify
the trial court’s written judgment to reflect the trial court, and not the jury, assessed
Castillo’s punishment. See St. Julian v. State, 132 S.W.3d 512, 517 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d) (modifying judgment sua sponte to correct
clerical error in judgment). “An appellate court may correct and reform a trial court
judgment to make the judgment congruent with the record.” Id. (citing Nolan v.
State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). This
Court has the authority “to modify an incorrect judgment when we have the
necessary data and information to do so.” Harris v. State, No. 01-10-00319-CR,
2011 WL 2089684, at *5 (Tex. App.—Houston [1st Dist.] May 19, 2011, pet.
ref’d) (mem. op., not designated for publication) (citing TEX. R. APP. P. 43.2(b));
see also Mungia v. State, No. 05-06-01254-CR, 2008 WL 2406140, at *3 (Tex.
App.—Dallas June 16, 2008, no pet.) (mem. op., not designated for publication)
(modifying judgment to reflect trial court, rather than jury, assessed punishment).
Conclusion
We modify the judgment to reflect that the trial court assessed punishment
rather than the jury. We affirm the trial court’s judgment as modified.
17 Veronica Rivas-Molloy Justice
Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.
Do not publish. TEX. R. APP. P. 47.2(b).